Sherry v. Radnor Twp. Sch. Dist..

• Decision Date: 04 April 2011
• Citation: 20 A.3d 515,268 Ed. Law Rep. 277
• Parties: Judy SHERRY, Appellantv.RADNOR TOWNSHIP SCHOOL DISTRICT.
• Court: Pennsylvania Commonwealth Court

20 A.3d 515

268 Ed. Law Rep. 277

Judy SHERRY, Appellant

v.RADNOR TOWNSHIP SCHOOL DISTRICT.

Commonwealth Court of Pennsylvania.

Argued Feb. 8, 2011.Decided April 4, 2011.

Daniel J. Sherry, Jr., Philadelphia, for appellant.Michael V. Puppio, Jr., Media, for appellee.BEFORE: COHN JUBELIRER, Judge, and BROBSON, Judge, and McCULLOUGH, Judge.OPINION BY Judge McCULLOUGH.

Judy Sherry (Sherry) appeals from the January 20, 2010, orders of the Court of Common Pleas of Delaware County (trial court) denying her petition for review and denying her motion to compel an in camera inspection of documents as well as the depositions of certain employees of the Radnor Township School District (District). Sherry had filed the petition for review in response to a final determination of the Office of Open Records (OOR) denying her appeal from the District's denial of her request to inspect any and all de-identified records or reports of Academic Honor Code (Honor Code) violations maintained by the District for the 2007–2008 and 2008–2009 school years.¹

On August 26, 2009, Sherry formally requested the aforementioned de-identified records or reports from the District. (R.R. at 12a.) One week later, on September 2, 2009, the District's Right–to–Know Law compliance officer advised Sherry that a search for the records was underway, that the search was taking longer than expected, and that legal review by the District's solicitor would be necessary before any documents would be turned over. (R.R. at 14a.) The compliance officer requested an extension of thirty days to respond to Sherry's request, and the District's solicitor thereafter sought an advisory opinion from OOR. (R.R. at 14a, 16a–17a.) However, Sherry declined the District's request for an extension, and OOR declined to issue an advisory opinion.

By letter dated September 24, 2009, the District's solicitor advised Sherry that her request was denied. (R.R. at 21a–23a.) The District cited two bases for its denial, the noncriminal investigation exemption found at section 708(b)(17) of the Right–to–Know Law (RTKL), Act of February 14, 2008, P.L. 6, as amended, 65 P.S. § 67.708(b)(17), and the concurrent federal law exemption found at section 305(a)(3) of the RTKL, 65 P.S. § 67.305(a)(3), namely the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g, which essentially prohibits the release of education records without parental consent. Id. Sherry then filed an appeal with OOR.

During the course of the appeal, OOR requested additional information from the District specifying the legal and factual basis for its denial of Sherry's request and supporting its response with citations to legal authority and sworn affidavits. (R.R. at 45a.) OOR also requested that the District address the arguments raised by Sherry, including her claim that the requested documents were released to other individuals. Id. In response, the District submitted sworn affidavits from Mark Schellenger, principal of Radnor High School, and Carl Rosin, a teacher at Radnor High School and an elected faculty member of the Radnor High School Academic Honor Council (Honor Council). (R.R. at 68a–87a.)

Principal Schellenger explained in his affidavit that disciplinary infractions, including infractions considered to be a violation of the Honor Code, are reported to administration officials via a student discipline and attendance report. (R.R. at 81a.) Principal Schellenger described this report as a single-page document which includes: the student's name and grade; the teacher's name; the date; the period of the offense; a lined area for the teacher to describe the inappropriate behavior; a lined area for the teacher to notate the response to this behavior (verbal reprimand, parent contact, detention); an area at the bottom of the document to record any administrative action (including level of discipline and the specific action taken); and a lined comment area. Id. Principal Schellenger indicated that these reports are maintained by the disciplinary secretary in a locked drawer in the administrative office, that a single copy was provided to the Honor Council for its meeting in the spring of 2008, and that the copy was returned to the discipline secretary after the meeting. (R.R. at 81a–82a.) Although the reports were de-identified, Principal Schellenger noted that they nevertheless contained elements that could be used to identify the student involved. (R.R. at 82a.)

Mr. Rosin described the composition of the Honor Council for the 2008–2009 school year as consisting of seven students, four teachers, and one community member/parent representative, noting that there were only six student members in the 2007–2008 school year. (R.R. at 85a.) Mr. Rosin indicated that the student members are selected through a multi-step process, including teacher votes, a written paper, and student body votes. Id. Mr. Rosin also indicated that all members of the Honor Council receive training on the confidentiality of student education records under FERPA.² Id. Mr. Rosin explained that the Honor Council does not maintain or retain possession of the disciplinary reports; instead, the Honor Council receives and reviews a copy of a violation report with the student's and teacher's names redacted and then returns the same to the disciplinary secretary. (R.R. at 86a.) Corroborating Principal Schellenger's testimony, Mr. Rosin indicated that, despite this redaction, the reports still contain information which could identify the student involved. (R.R. at 87a.) Further, Mr. Rosin noted that the Honor Council does not impose punishment or discipline but reviews the reports to identify relevant issues that need to be addressed with the student body. (R.R. at 86a.)

Based upon alleged inconsistencies in the affidavits and the District's Honor Code,³ Sherry requested leave from OOR to depose Principal Schellenger and Mr. Rosin, or, alternatively, that OOR conduct a hearing at which these individuals be directed to appear for purposes of cross-examination. (R.R. at 88a.) OOR refused Sherry's request for leave and declined to hold a hearing. (R.R. at 117a.) On November 4, 2009, OOR issued a final determination denying Sherry's appeal. (R.R. at 258a–268a.) OOR agreed with the District that the requested records were exempt as noncriminal investigation records under section 708(b)(17) of the RTKL and that release of the records was precluded by FERPA. Id. With respect to FERPA, OOR relied on the affidavits of Principal Schellenger and Mr. Rosin to conclude that the requested records contain personally identifiable information which could potentially identify the students involved in the infractions. Id. Sherry thereafter filed a petition for review with the trial court as well as a motion to compel an in camera inspection of the requested documents and the depositions of Principal Schellenger, Mr. Rosin, and Attorney Levin. (R.R. at 121a–36a, 271a–90a.)

By orders dated January 20, 2010, the trial court denied Sherry's petition for review and her motion to compel. (R.R. at 545a–46a.) Sherry then filed a notice of appeal with the trial court. In a subsequent opinion in support of its orders, the trial court held that OOR had correctly concluded that the requested documents were exempt as noncriminal investigation records under section 708(b)(17) of the RTKL and that release of the records was precluded by FERPA. (Trial court op. at 7.)

In response to Sherry's assertion that the trial court erred and/or abused its discretion in failing to hold a hearing whereby she could cross-examine Principal Schellenger, Mr. Rosin, and Attorney Levin, the trial court indicated that the RTKL does not require a hearing.⁴ Id. In addition, the trial court stated that it was satisfied that the requested documents were protected as a matter of law and that a hearing would be a waste of judicial resources and economy. (Trial court op. at 8.) The trial court further noted that the RTKL does not provide for discovery of any kind, including depositions.⁵ Id.

On appeal to this Court,⁶ Sherry first argues that the trial court erred as a matter of law in refusing to permit her to depose or cross-examine witnesses who submitted affidavits on behalf of the District and upon which the OOR relied in denying her appeal.⁷ We disagree.

We begin by noting that neither the RTKL nor the courts have extended a right to discovery or a right to due process to a requesting party in a RTKL action. While sections 504 and 505 of the Administrative Agency Law, 2 Pa.C.S. §§ 504, 505, provide that a party before an administrative agency is entitled to notice and an opportunity to be heard, including the right to examine and cross-examine witnesses, section 1309 of the RTKL specifically states that the provisions of the Administrative Agency Law are inapplicable to RTKL proceedings. 65 P.S. § 67.1309. Hence, the provisions of the Administrative Agency Law requiring an evidentiary hearing do not apply. See also Prison Legal News v. Office of Open Records, 992 A.2d 942 (Pa.Cmwlth.2010). In Prison Legal News, we further held that due process does not require a hearing because the right to information provided by the RTKL does not involve a property right; rather, it is a privilege granted by the General Assembly.⁸

Section 1102(a)(2) of the RTKL, 65 P.S. § 67.1102(a)(2), does provide an OOR appeals officer with the discretion to decide whether or not to hold a hearing and section 1101(b)(3), 65 P.S. § 67.1101(b)(3), similarly provides that an appeals officer may hold a hearing prior to the issuance of a final determination. However, section 1102(a)(2) further provides that the decision of whether or not to hold a hearing is not appealable.

Recently, this Court held that the RTKL does not expressly restrain a reviewing court from supplementing the record through a hearing or remand. Bowling. We indicated in Bowling that, similar to the OOR appeals officer, a...